AC624 Crash Halifax Airport

On November 25, 2022, the Supreme Court of Canada released its judgment regarding the release of the Cockpit Voice Recorder (CVR) from Flight A624. A Majority of the Court dismissed the Transportation Safety Board’s appeal, finding that the Honourable Justice Duncan’s decision to order disclosure of the CVR was necessary to fill the gaps in the pilots’ evidence that were central to determining causation and thus liability for the accident. Please see the ‘Documents’ section of our website to review a copy of the Supreme Court of Canada’s decision.

On consent of the parties, Wagners has filed a Second Fresh as Amended Notice of Action and Statement of Claim with the Court on June 20, 2022, to specify further allegations against Airbus S.A.S. (a named defendant) and removes allegations of negligence against Transport Canada as regulator, per the certification decision of the Honourable Justice Denise Boudreau.

As explained in former updates, both levels of court in Nova Scotia have ordered that the cockpit voice recording (CVR) be released to counsel for parties in this action. These decisions were in opposition to the position of the intervenors, the Transportation Safety Board and the Air Canada Pilots Association, who argued the CVR should not be released. Most parties to the action consider the CVR to be relevant and valuable evidence as to what happened in the cockpit immediately preceding the crash, and thus important for determining fault of the various involved defendants.

The Transportation Safety Board sought permission from the Supreme Court of Canada to appeal the Nova Scotia Court of Appeal decision. On October 14, 2021, the Supreme Court of Canada granted the Transportation Safety Board permission to have its appeal heard, on an expedited basis.

The hearing before the Supreme Court of Canada took place virtually on March 17, 2022, and the Supreme Court reserved its decision. We will provide updates, once the decision is received.

On April 16, 2021, the Nova Scotia Court of Appeal released its decision concerning The Transportation Safety Board of Canada’s appeal of the interlocutory decision of the Honourable Justice Patrick Duncan, which authorized the conditional release of the contents of the cockpit voice recorder of the Air Canada Flight 624. Justice Duncan determined that the public interest in the proper administration of justice outweighed the importance of the statutory privilege attached to the cockpit voice recorder.

The Nova Scotia Court of Appeal dismissed the TSB’s appeal and found that the decision of Justice Duncan weighed public interest in the administration of justice against privacy/safety considerations and concluded that disclosure was warranted in this case. In its decision, the Court of Appeal found that Justice Duncan issued an order maintaining confidentiality and limited the purposes for which the cockpit voice recorder information could be used. The Court of Appeal did not find that Justice Duncan applied a wrong principle, nor did they find that he misapprehended the evidence. As a result, the Court of Appeal concluded that Justice Duncan’s decision was discretionary and it is entitled to deference.

On May 25, 2021, the Transportation Safety Board of Canada filed an Application for Leave to Appeal the Nova Scotia Court of Appeal‘s decision in the Supreme Court of Canada. We are currently awaiting the Supreme Court of Canada’s judgment as to whether the TSB’s application will be allowed. We will post an update once the judgment has been released.

On July 4, 2019, the Honourable Justice Duncan of the Supreme Court of Nova Scotia heard a motion to determine a limited, contested issue in this case. The Defendant Airbus SAS brought a motion for an Order to require the Canadian Transportation Accident Investigation and Safety Board (TSB) to produce the audio data and any transcripts from the on-board Cockpit Voice Recorder (CVR) that was onboard Air Canada flight 624. The Plaintiffs and some other Defendant parties (HIAA and NAV Canada) joined with Airbus in seeking production of the CVR. There were also intervening parties – the Air Canada Pilots Association and the TSB – who argued that the court should not order production of the CVR.

The CVR is a flight recorder used to record the audio environment in the flight deck of an aircraft for the purpose of investigation of accidents and incidents. Typically, the CVR is not disclosable, unless a Court orders that it be disclosed in the interests of justice.

Following the hearing on July 4, 2019, the Judge provided an oral decision on September 4, 2019, with written reasons to follow, which were released November 20, 2019.

In sum, the Judge concluded that, under the circumstances of this case, the public interest in the administration of justice outweighs the importance of protecting the CVR. He determined that the contents of the CVR are relevant and reliable, and that this litigation is important and substantial both in personal, and in monetary, terms.

A copy of the written reasons are posted HERE.

The class action was certified on consent on December 14, 2016.

The parties are preparing for a common issues trial. The trial dates are soon to be scheduled.